Government Authorities Must Pay For Redaction Costs under Public
Records Law

June 27, 2012
– The Wisconsin Supreme Court recently clarified that government
entities must pay for redaction costs when someone wants access to
public records.

But a majority of the court believes the Wisconsin Legislature should
revisit the issue to address the time and costs of large requests
involving volumes of data.

The public records law (Wis.
Stat. chapter 19, subchapter II) grants public access to government
records, but also requires redaction of sensitive information like
social security numbers.

Two Milwaukee Journal Sentinel reporters requested police
reports from the Milwaukee Police Department for periods between 2009
and 2010. The police department released some records, but ultimately
rejected requests unless the newspaper paid approximately $4,200 for the
staff time required to redact sensitive information from those
reports.

The newspaper sued, arguing that the City of Milwaukee was required to
pay those costs. The law, Wis. Stat. section 19.35(3),
states that a government authority may impose costs for locating,
reproducing, transcribing, photos, photo processing, and mailing or
shipping.

But the law does not say anything about costs for redaction, and it has
long been the opinion of the attorney general’s office that the
government is required to pay redaction costs.

“If the legislature had wanted to allow an authority to impose
fees for a range of tasks, or if it had wanted to include the task of
redaction as a task for which fees may be imposed, it would have said
so. It did not,” wrote Chief Justice Shirley Abrahamson in a lead
opinion.

The chief justice noted the purpose of the law – open access to
records – and the possibility that imposing redaction fees could
detract or prevent requesters from accessing records.

The lead opinion also references a 1983 Attorney General opinion, by
then-A.G. Bronson La Follette, stating that government agencies must
bear the cost of redaction since there is no provision in the law to
impose those costs on the person or entity that requests records.

The court rejected the city’s argument that two Wisconsin cases
allow recovery of redaction fees and the legislature has allowed those
cases to stand without amending the law.

Concurrences

While all justices agreed that the circuit court’s order should
be reversed in favor of the Milwaukee Journal Sentinel, two
concurrences were filed to note the potential implications of the ruling
and to suggest that the legislature should reconsider the
implications.

Justice Patience Roggensack filed a concurrence – joined by
Justices David Prosser, Annette Ziegler, and Michael Gableman – to
point out two potential problems with the court’s decision: The
large costs involved with voluminous requests and a shortage of staff to
meet demands.

“The lead opinion’s decision today is driven by those
policies that the legislature articulated in the Public Records
Law,” Justice Roggensack wrote.

“However, the statutes enacted to further those policies did not
anticipate voluminous record requests such as those that the Journal
Sentinel and others have made recently,” she wrote.

Justice Prosser wrote a separate concurring opinion to further
highlight his perceived implications of the ultimate ruling and the need
for the legislature to “reexamine the law.”

“We live in an information age,” Justice Prosser wrote.
“Taxpayers are paying for the accumulation of vast amounts of
data. Now taxpayers may have to pay to give that data away so that
others can make a profit.”

Attorneys

Robert Dreps of Godfrey & Kahn, Madison, represented the Milwaukee
Journal Sentinel. Milwaukee City Attorney Grant Langley and Assistant
City Attorney Melanie Swank represented the City of Milwaukee and
Milwaukee Police Department.